Expanding the purview of international law


Giving the International Criminal Court the power to prosecute the crime of aggression could open the door to criminal accusations against powerful leaders.

Over a 100 nations are meeting in Kampala, Uganda, to review the ICC’s performance

Security Council members U.S., Russia and China are against expanding the court’s purview

More than 100 nations, contingents of human-rights groups and lawyers from around the globe began a meeting on Monday in Kampala, Uganda, tackling issues that could fundamentally expand the power of international law. The thorniest question on the agenda, one certain to dominate the conference, is a proposal to give the International Criminal Court in The Hague the power to prosecute the crime of aggression.If approved, it could open the door to criminal accusations against powerful political and military leaders for attacks the court deems unlawful. Those could range from full-scale invasions to pre-emptive strikes.The court, the world’s first permanent criminal court, already has a mandate to prosecute three groups of grave crimes: genocide, crimes against humanity and war crimes.Adding aggression to this list “would be a game-changer in international diplomacy”, said Noah Weisbord, a member of the expert group that has drafted a definition of the crime for the meeting. Another proposal on the agenda would allow the court to prosecute leaders who use weapons with poison, gases, liquids or bullets that cause unnecessary suffering during domestic conflicts and crowd control by the army or police. These weapons are already forbidden in international conflicts.

Many of the court’s 111 member countries have said that they favour adding the crime of aggression to its mandate. Among those nations are Germany and numerous small countries that see the change as a form of legal protection. But others, including Britain and France, argue that it would overwhelm the court and trap it in political disputes.

The United States, Russia and China, which cannot vote because they have not joined the court and are in Kampala only as observers, are strongly against expanding the court’s purview and are expected to work hard behind the scenes to postpone any action on the issue. Several diplomats said that those three countries, which along with France and Britain hold U.N. Security Council veto power, do not want to see a court with powers that could weaken the Council’s influence. The momentum appears to favour adopting some sort of change, but the outcome is far from certain. Adoption would require a majority to agree on a definition of the crime of aggression and the terms under which it could be prosecuted. Proposals still face many hurdles, with delegates and rights groups lobbying hard on all sides of the issue before the meeting. This is the first conference at which amendments are allowed to the Rome statute that created the court in 1998.

“Many people figure the stakes are very high here from different perspectives,” Richard Dicker, a director of Human Rights Watch, said in a telephone interview from Kampala, where many more delegates and lobbyists than expected had already arrived. “I don’t recall such large and high-level attention ever focused on international justice.” The meeting comes at a time when other temporary tribunals that have dealt with atrocities in Yugoslavia, Rwanda and Sierra Leone are winding down. Once those tribunals finish their work, the International Criminal Court will be the main permanent authority to deal with large-scale crimes against civilians in cases where national courts are unwilling or unable to prosecute. Leading up to the meeting, supporters and critics have argued on panels and in papers that the court, which opened its doors in 2002 and has started only two trials, should focus on becoming more efficient on the complex tasks before it rather than risk getting bogged down so soon in the intensely political issue of aggression.

“Just as one nation’s terrorist is another nation’s freedom fighter, one state’s just war is bound to be another state’s unjust war,” Mr. Weisbord wrote recently in an article explaining some complexities of defining aggression. The crime of aggression was originally written into the court’s statute, but delegates disagreed on a definition, and the issue was shelved until this conference. Experts who have spent seven years hammering out a draft definition have purposely left some gray areas to leave room for life-saving operations, like NATO’s intervention in Kosovo. “The major powers will not agree on a definition of aggression because that would mean taking a clear stand on categories of self-defence, like using force to prevent an attack or even a threat,” said Antonio Cassese, a scholar and judge who has served at two international tribunals. “Recent U.N. documents consider pre-emptive self-defence unlawful, and I agree.” Harold Koh, the U.S. State Department legal adviser and a co-chairman of the American delegation in Kampala, told a meeting of international lawyers in Washington this month that “if we accept a definition, we need to fix it,” adding, “it has to take into account the many ways in which force can be lawfully exercised”. — New York Times News Service



One thought on “Expanding the purview of international law

  1. The International Criminal Court: India was right!

    This week, in Kampala, Uganda, state members of the International Criminal Court begin their first ever review conference of the Court since its establishment in 2002. India, it may be remembered, refused to sign the Rome statute establishing the Court because of what it saw as double standards and the Court’s reluctance to criminalise wars of aggression and the use of weapons of mass destruction.

    India’s position has been vindicated. When the Assembly of States parties, those states that have signed up to the ICC statute binding them to its jurisdiction, meet in Kampala there is a lot they should be worried about, not least of which the fact that the ICC has proved to be manifestly unfit for purpose. The ICC’s claims to international jurisdiction and judicial independence are institutionally flawed and the Court’s approach has been marred by blatant double-standards and serious judicial irregularities. The Hague-based ICC is increasingly being seen as the European equivalent of the US tribunal at Guantánamo Bay, which similarly claims international jurisdiction.

    While the ICC presents itself as an international court this is quite simply not the case. Its members represent just over one quarter of the world’s population: China, Russia, the United States, India, Pakistan and Indonesia are just some of the many countries that have remained outside of the Court’s jurisdiction.

    The truth is also that the ICC is as independent as the United Nations Security Council and the Court’s European Union funding lets it be. Far from being an independent and impartial court, the ICC’s own statute grants special “prosecutorial” rights of referral and deferral to the Security Council, or more specifically its five permanent members. As India warned eight years ago, political interference in the legal process was thus made part of the Court’s founding terms of reference.

    The Court is also umbilically tied to the European Union which provides over 60 percent of its funding. The expression, “He who pays the piper calls the tune”, could not be more accurate. The ICC has ignored all European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states. Instead, the Europeans have chosen to focus the Court exclusively on Africa. Despite over 8,000 complaints about alleged crimes in at least 139 countries, the ICC has started investigations into just five countries, all of them African. Given Africa’s previous traumatic experience with the very same colonial powers that now in effect direct the ICC, this must create an alarming déjà vu for those who live on the continent. The EU is additionally guilty of economic blackmail in tying aid for developing countries to ICC membership – while at the same time having criticised Washington for tying aid to bilateral immunity deals with countries that were members of the ICC.

    The Court’s proceedings have often been questionable where not farcical. Its judges – some of whom have never been lawyers, let alone judges – are appointed as the result of vote-trading amongst member states. The Court has produced witnesses who recanted their testimony the moment they got into the witness box, admitting that they were coached by non-governmental organisations as to what false statements to make. There have been prosecutorial decisions which should have ended any fair trial because they compromised the integrity of any subsequent process. The ICC’s first trial stalled because of judicial decisions to add new charges half-way through proceedings. Simply put, the Court has been making things up as it goes along.

    The ICC claims to be “economical”, yet it has cost half a billion Euros to put on one deeply flawed trial, which subsequently ground to a halt for months. The ICC claims to be victim-centred, yet Human Rights Watch has publicly criticised the ICC’s ambivalence towards victim communities. The ICC claims to bring “swift justice” but it has taken several years to bring the first accused to trial for allegedly using child soldiers. The Nuremberg trials, which addressed infinitely more serious charges, were over within a year. The ICC claims to be fighting impunity, yet it has afforded de facto immunity and impunity to several serial abusers of human rights who happen to be friends of the European Union and United States.

    Africa fought long and hard for its independence. It must reject this new “legal” colonialism. The ICC’s double-standards and autistic legal blundering in Africa has derailed delicate peace processes – thereby prolonging devastating civil wars. There is a clear lesson for countries in Africa and elsewhere: do not join the ICC and do not refer your country to the ICC. The ICC does not have Africa’s welfare at heart, or that of the developing world, only the furtherance of Western, and especially European, foreign policy and its own bureaucratic imperative – to exist, to employ more Europeans and North Americans and where possible to continue to increase its budget.

    Dr David Hoile, a London-based political consultant, is the author of ‘The International Criminal Court: Europe’s Guantánamo Bay?’. He can be contacted at drdavidhoile@yahoo.co.uk

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